1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ESTATE OF HAILE NEIL, TARA No. 2:19-cv-02441-TLN-DB KUCK, and MICHAEL NEIL, 12 13 Plaintiffs, 14 v. 15 COUNTY OF COLUSA, COLUSA

COUNTY SHERIFF’S DEPARTMENT, ORDER

16 and JOE GAROFALO, 17 Defendants. 18 19 This matter is before the Court pursuant to Plaintiffs Estate of Haile Neil, Tara Kuck, and 20 Michael Neil’s (collectively, “Plaintiffs”) Motion to Amend. (ECF No. 28.) Also before the 21 Court are Defendant Joe Garofalo’s (“Garofalo”) Motion to Dismiss (ECF No. 10) and Plaintiffs’ 22 Motion to Strike. (ECF No. 13.) All the pending motions have been fully briefed. For the 23 reasons set forth below, the Court GRANTS Plaintiffs’ Motion to Amend and DENIES the 24 remaining motions as moot. 25 /// 26 /// 27 /// 28 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This case arises from the death of a pretrial detainee at Colusa County Jail. (See generally 3 ECF No. 1.) Plaintiffs are the decedent’s parents, who commenced the instant action on 4 December 5, 2019 on behalf of themselves and the decedent’s estate. (Id.) Defendants Colusa 5 County and Colusa County Sheriff’s Department (“County Defendants”) filed an answer on 6 January 23, 2020. (ECF No. 9.) On January 24, 2020, Garofalo filed a motion to dismiss. (ECF 7 No. 10.) On February 6, 2020, Plaintiffs filed a motion to strike affirmative defenses from 8 County Defendants’ answer. (ECF No. 13.) On August 21, 2020, Plaintiffs filed the instant 9 motion to amend. (ECF No. 28.) Plaintiffs seek to add Officer Britney Cunningham (“Officer 10 Cunningham”) as a Defendant, modify allegations to existing claims, and remove certain 11 Defendants from the Complaint. (Id. at 5.) As will be discussed, the Court grants Plaintiffs’ 12 motion to amend. Therefore, the Court need not and does not address the other pending motions, 13 which will be denied as moot. 14 II. STANDARD OF LAW 15 Granting or denying leave to amend a complaint rests in the sound discretion of the trial 16 court. Swanson v. United States Forest Serv., 87 F.3d 339, 343 (9th Cir. 1996). When the Court 17 issues a pretrial scheduling order that establishes a timetable to amend the complaint, Federal 18 Rule of Civil Procedure (“Rule”) 16 governs any amendments to the complaint. Coleman v. 19 Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000). To allow for amendment under Rule 16, 20 a plaintiff must show good cause for not having amended the complaint before the time specified 21 in the pretrial scheduling order. Id. The good cause standard primarily considers the diligence of 22 the party seeking the amendment. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th 23 Cir. 1992). “Moreover, carelessness is not compatible with a finding of diligence and offers no 24 reason for a grant of relief.” Id. The focus of the inquiry is on the reasons why the moving party 25 seeks to modify the complaint. Id. If the moving party was not diligent, then good cause cannot 26 be shown, and the inquiry should end. Id. 27 Even if the good cause standard is met under Rule 16(b), the Court has the discretion to 28 refuse amendment if it finds reasons to deny leave to amend under Rule 15(a). Johnson, 975 F.2d 1 at 610. Under Rule 15(a)(2), “a party may amend its pleading only with the opposing party’s 2 written consent or the court’s leave,” and the “court should freely give leave when justice so 3 requires.” The Ninth Circuit has considered five factors in determining whether leave to amend 4 should be given: “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of 5 amendment; and (5) whether plaintiff has previously amended his complaint.” In re W. States 6 Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (citing Allen v. City of 7 Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)). 8 III. ANALYSIS 9 A. Rule 16 10 Because the Pretrial Scheduling Order requires Plaintiffs to show good cause to amend at 11 this stage, Plaintiffs must first meet Rule 16’s good cause standard. (ECF No. 3 at 2.) 12 Defendants argue Plaintiffs have not been diligent in seeking leave to amend because 13 Plaintiffs knew the facts underlying the proposed amendments as early as September 5, 2019, 14 before they filed the Complaint and months before the deadline to amend established by the 15 Pretrial Scheduling Order. (ECF No. 37 at 9, 16–24.) 16 Despite Defendants’ arguments, the Court finds Plaintiffs have made a sufficient showing 17 of diligence. Plaintiffs attribute any delay in seeking amendment to Defendants’ “delayed 18 production of the in-custody death investigation reports for several months.” (ECF No. 28-1 at 19 10.) Production of the investigative reports in question was initially sought by Plaintiffs on 20 January 30, 2020, before the Scheduling Order’s deadline to amend. (ECF No. 28-2 at 33; ECF 21 No. 3 at 2.) Defendants rejected Plaintiffs’ request on April 13, 2020 because the investigation 22 was ongoing and indicated the reports would only be provided pursuant to a protective order after 23 the investigation was completed. (ECF No. 28-2 at 40–41.) The parties failed to reach a 24 Stipulated Protective Order and Defendants’ subsequent motion for a protective order was denied 25 June 16, 2020. (ECF Nos. 21, 24.) After communicating throughout July 2020 (See ECF No. 28- 26 2 at 51–67), the parties reached an agreement on July 30, 2020, and the investigative reports were 27 provided the same day. (See ECF No. 27; ECF No. 28-2 at 69–76.) Less than a week later, 28 Plaintiffs informed Defendants of their intention to amend the Complaint based on information in 1 the investigative reports. (ECF No. 28-2 at 77.) After being provided with a copy of the 2 proposed amended complaint, Defendants informed Plaintiffs they would not stipulate to filing of 3 the amended complaint on August 19, 2020. (Id. at 84.) Plaintiffs filed the motion to amend two 4 days later on August 21, 2020, only three weeks after receiving the reports. (ECF No. 28-1.) 5 Although Defendants argue the new facts alleged were included in prior disclosures 6 provided “nearly a year ago,” they acknowledge that Plaintiffs base new allegations on 7 inaccuracies or other “errors” included in the investigative reports that differ from the information 8 in the disclosures. (ECF No. 37 at 17–20, 22.) Plaintiffs argue in their reply these inaccuracies 9 are the reason they are amending and the prior information from the disclosures is being added 10 now because it was not significant until these inaccuracies were discovered through the 11 investigative reports. (See ECF No. 39.) Based on the purported new facts and theories that 12 came to light once provided with the investigative reports, and the failed negotiations between the 13 parties, the Court finds that Plaintiffs were reasonably diligent in moving to amend such that they 14 satisfy Rule 16’s good cause standard. See Johnson, 975 F.2d at 609. 15 B. Rule 15 16 The Court now turns to whether Plaintiffs’ motion to amend is proper under Rule 15. 17 Defendants argue amendment is improper as to all Rule 15 factors. (ECF No. 37 at 16.) The 18 Court considers each factor in turn. 19 i. Bad Faith 20 “Bad faith means acting with intent to deceive, harass, mislead or disrupt.” Richard A. 21 Leines v. Homeland Vinyl Products, Inc., No. 2:18-cv-00969-KJM-DB, 2020 WL 6044037, at *4 22 (E.D. Cal. Oct. 13, 2020) (citing Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006)). 23 There is bad faith when the moving party seeks leave to amend as a means “to prolong litigation 24 by adding new but baseless legal theories.” Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 880 25 (9th Cir. 1999). 26 Defendants make various arguments that Plaintiffs have alleged “untrue,” “misleading,” 27 “demonstrably false,” and “deliberately misunderstood” facts contradicting and ignoring 28 evidence. (ECF No. 37 at 18–22, 24, 25.) To the extent Defendants argue Plaintiffs’ claims lack 1 merit, a motion to amend is not the proper stage of litigation to address and adjudge the merits of 2 Plaintiffs’ allegations. See FlatWorld Interactives LLC v. Apple Inc., 12-cv-01956-WHO, 2013 3 WL 6406437, at *3 (N.D. Cal. Dec. 6, 2013). Defendants do not persuade the Court that 4 Plaintiffs acted with a dilatory motive or that the new facts sought to be introduced by Plaintiffs 5 are alleged in bad faith as a means “to prolong litigation.” Griggs, 170 F.3d at 880. As such, this 6 factor weighs in favor of granting leave to amend. 7 ii. Prejudice 8 Prejudice is the factor that weighs most heavily in the Court’s analysis of whether to grant 9 leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 10 “Prejudice results when an amendment would unnecessarily increase costs or would diminish the 11 opposing party’s ability to respond to the amended pleading.” BNSF Ry. Co. v. San Joaquin 12 Valley R.R. Co., No. 1:08-cv-01086-AWI, 2011 WL 3328398, at *2 (E.D. Cal. Aug. 2, 2011) 13 (citation omitted). Courts have found amendments to be prejudicial when leave to amend is 14 requested as a discovery deadline nears or has already passed. See, e.g., Zivkovic v. S. Cal. 15 Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002); Lockheed Martin Corp. v. Network Sols., Inc., 16 194 F.3d 980, 986 (9th Cir. 1999). 17 Defendants argue Officer Cunningham will be prejudiced by the proposed amendment 18 because being added to this lawsuit will “drag her into litigation for years” and Plaintiffs should 19 have included her in the original Complaint. (ECF No. 37 at 17.) However, Officer 20 Cunningham’s alleged prejudice amounts to defending a lawsuit and does not rise to the 21 substantial level required to justify denying leave to amend at this early stage when there is no 22 trial date, no pending dispositive motion, and no indication discovery would need to be reopened. 23 See BNSF, 2011 WL 3228398 at *3–4. Moreover, Defendants’ arguments fail to establish how 24 allowing amendment would “unnecessarily increase costs or diminish” the existing Defendants’ 25 ability to respond to the pleading. BNSF, 2011 WL 3328398 at *2; see also Leines, 2020 WL 26 6044037 at *4. Accordingly, this factor weighs in favor of granting leave to amend. 27 /// 28 /// 1 iii. Undue Delay 2 In evaluating undue delay, the Court inquires “whether the moving party knew or should 3 have known the facts and theories raised by the amendment in the original pleading.” 4 AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006) (quoting 5 Jackson v. Bank of Haw., 902 F.2d 1385, 1388 (9th Cir. 1990)). However, “undue delay by itself 6 . . . is insufficient to justify denying a motion to amend.” Bowles v. Reade, 198 F.3d 752, 758 7 (9th Cir. 1999). 8 Defendants argue the “new allegations stated in the proposed FAC demonstrate[] that 9 Plaintiff knew or should have known of the ‘new facts’ giving rise to the proposed FAC” either 10 pre-litigation or early in discovery and there is no “justifiable reason” for waiting as long as they 11 did to seek leave to amend. (ECF No. 37 at 16.) 12 The Court notes that even if Plaintiff’s delay was unreasonable, that factor alone is 13 insufficient to deny Plaintiff’s motion, especially when the remaining Rule 15 factors weigh in 14 favor of granting leave to amend. See Bowles, 198 F.3d at 758. However, as discussed, Plaintiffs 15 delay was not unreasonable based on the relatively short amount of time between when Plaintiffs 16 received the investigative reports and when Plaintiffs sought leave to amend. Accordingly, the 17 Court finds this factor also weighs in favor of granting leave to amend. 18 iv. Futility 19 The Ninth Circuit has held that when an amendment is futile, “there [is] no need to 20 prolong litigation by permitting further amendment.” Lipton v. Pathogenesis Corp., 284 F.3d 21 1027, 1039 (9th Cir. 2002). A proposed amendment is futile where “the pleading could not 22 possibly be cured by the allegation of other facts.” Watison v. Carter, 668 F.3d 1108, 1117 (9th 23 Cir. 2012) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 24 Defendants argue the “state law claims alleged in the proposed FAC are futile” because 25 Plaintiffs did not timely present a government claim and are collaterally estopped due to denial of 26 a petition for leave to present a late claim. (ECF No. 37 at 16, 26.) 27 The Court notes that Defendants are challenging claims that already exist in the original 28 Complaint. (See ECF No. 1.) The sufficiency of these existing claims would be more appropriately addressed in a properly noticed motion to dismiss. See SAES Getters S.p.A. v. 2 Aeronex, Inc., 219 F. Supp. 2d 1081, 1086 (S.D. Cal. 2002) (“While courts will determine the ° legal sufficiency of a proposed amendment using the same standard as applied in a Rule 12(b)(6) ‘ motion, .. . such issues are often more appropriately raised in a motion to dismiss rather than an ° opposition to a motion for leave to amend.”). For the purposes of ruling on the instant motion, the Court finds this factor weighs in favor of granting leave to amend. 7 In sum, the Court finds that Plaintiffs have met Rule 16’s good cause standard. The Court also finds the Rule 15 factors weigh in favor of granting Plaintiffs’ motion because (1) such an ° amendment will not unduly prejudice Defendants, (2) there is no evidence Plaintiffs acted in bad 10 faith, (3) there is no undue delay, and (4) there is no evidence the proposed amendment is futile.

IV. CONCLUSION

2 For the foregoing reasons, Plaintiffs’ Motion to Amend (ECF No. 28) is hereby GRANTED. The Court ORDERS Plaintiffs to file their amended complaint not later than thirty (30) days from the electronic filing of this Order. Defendants shall file a responsive pleading no later than twenty-one (21) days after the filing of Plaintiffs’ amended complaint. '6 In addition, Garofalo’s Motion to Dismiss (ECF No. 10) and Plaintiffs’ Motion to Strike "7 (ECF No. 13) are DENIED as moot. The parties shall file a Joint Status Report with new '8 proposed dates within thirty (30) days of electronic filing of this Order.

IT IS SO ORDERED.

20 Dated: August 26, 2021 21 /) 22 \ | jf / 54 wr i Vbm* 24 Troy L. Nuhlep ] United States District Judge 25 26 27 28